Choe v. World Tour and Hotel Centre Toronto, 2009 HRTO 2018

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

April Hyo-Jean Choe

Applicant

-and-

World Tour and Hotel Centre Toronto Inc., Joon-Myon Kim and the Estate of Mi-Sook Kim

Respondents

DECISION

Adjudicator: Jim Dimovski

Date: November 25, 2009

Citation: 2009 HRTO 2018

Indexed as: Choe v. World Tour and Hotel Centre Toronto

AppearanceS BY

April Hyo-Jean Choe, Applicant ) Genny Na, ) Counsel

World Tour and Hotel Centre Toronto Inc., ) William Murray, Joon-Myon Kim and the Estate of Mi-Sook Kim, ) Counsel Respondents )

1This Decision addresses whether the Application is barred or should be deferred as the applicant is a plaintiff in an ongoing civil proceeding.

2This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint filed with the Ontario Human Rights Commission was abandoned upon filing the present Application and alleges the respondents discriminated against the applicant on the basis of sex and family status with respect to the termination of her employment.

3A Case Resolution Conference (“CRC” or “hearing”) was held on September 10 and 11, 2009. It was agreed an additional hearing day was required and as a result this matter was set to reconvene on October 6, 2009.

4Prior to the reconvened hearing, in a Case Assessment Direction (“CAD”), the parties were directed to provide the Tribunal with copies of the Statement of Claim and Defence in relation to the applicant’s civil action against the respondents. The CAD informed the parties that the following issue would be addressed at the reconvened hearing: whether the Application is barred by virtue of s. 34(11) of the Code.

5In August 2006, the applicant filed a civil proceeding against the respondents seeking a declaration that the applicant’s termination of employment was wrongful and damages for wrongful dismissal and/or breach of contract and damages for bad faith, mental stress and punitive damages, among other things.

STATUTORY PROVISIONS

6Section 34(11) of the Code provides:

A person who believes that one of his or her rights under Part 1 has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

7Section 46.1 reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for the injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action solely on an infringement of a right under Part I.

SUBMISSION OF THE PARTIES

8The applicant’s counsel argued, as reflected in her correspondence dated October 2, 2009, that the applicability of s. 34(11) should have been addressed as a preliminary matter by the respondents, and not after two days of hearing in which evidence was heard. The applicant’s counsel also disputed, contrary to the CAD, that the applicability of s. 34(11) was based on questions raised by her during the questioning of a witness. As supported by an Affidavit sworn on October 5, 2009 by Wendy Litner, a solicitor with the law firm retained by the applicant, the applicant submitted that the witness referred to in the CAD was not asked whether she understood the difference between the Application and the civil action. In her view, the applicability of s. 34 (11) was not appropriately raised. Indeed, she disputed whether the Tribunal could raise the issue after much of the evidence had been heard.

9Additionally, she argued that to bar the Application at this point would amount to a severe prejudice of natural justice and duplicate the proceedings since the conclusion of the matter is near. Also, she argued that the applicant was not provided sufficient notice to prepare for the issue.

10In terms of the applicability of s. 34(11), the applicant acknowledged that the Application and the civil action contain similar facts. However, the applicant argued that the court is not being asked to conduct a human rights analysis. The applicant is seeking damages for wrong dismissal and breach of contract. Applicant’s counsel noted the court action was drafted in a manner to avoid any reference to the Code.

11The respondents argued it was appropriate to deal with the issue, even after evidence has been heard, because the issue is jurisdictional as prescribed by statute. Further, the respondents argued that the Application and the civil action allege the same factual circumstances and claim relief arising from an infringement of the Code.

ANALYSIS

1. JURISDICTION

12I do not accept the applicant’s position that it is too late to address the applicability of s. 34(11). In my view, under Rule 4.2 and 4.3 (m) of the Tribunal Rules of Procedure for Applications under Section 53 (3) (the “Transitional Rules”), the Tribunal has significant latitude to address issues of jurisdiction at any time during a hearing and on its own accord.

13Aside from the Transitional Rules, I am satisfied that the language of s. 34 (11) goes to jurisdiction since it bars applications that raise the Code in a civil proceeding. In my view, if the Tribunal does not have jurisdiction, the circumstances under which the applicability of s. 34 (11) is raised is not relevant. Although regrettable, I do not agree with the applicant’s submissions that the context in which this issue was raised would negate the jurisdictional bar clearly prescribed by the legislation.

2. NOTICE

14Although the applicant’s counsel noted that she had been given short notice from the time of the CAD, she at no point at the reconvened hearing requested additional time to prepare or a chance to provide further submissions after the hearing was adjourned. In any event, she had sufficient advance notice to enable her to prepare a response to the narrow issue addressed on October 6, 2009. Indeed, her oral submissions, which were in excess of an hour, referenced the relevant Tribunal case law and addressed pertinent points for my consideration. Accordingly, I do not find that the applicant suffered any significant prejudice as a result of the notice she had been provided to address the s. 34(11) issue.

3. THE APPLICATION IS BARRED

15In this matter, the applicant has filed a civil action for wrongful dismissal alleging virtually identical facts. Indeed, the applicant pleads that “the sole reason” for the termination of her employment by the respondents was because “she miscarried and the fact that she was pregnant”. While the pleadings in the civil action do not make any reference to the Code, they allege that the manner of the dismissal was “hurtful, embarrassing, discriminatory and offensive”.

16In my view, if a person raises in a civil proceeding, an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

17The underlying purpose and rationale of s. 34(11) was stated in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

18I find that the factual situation set out in the Application is the same as the factual situation set out in the civil action, namely an allegedly discriminatory termination related to pregnancy. Indeed, this is not a situation in which the facts alleged in the Application are tangentially referenced within the civil action. Accordingly, I find that the lack of explicit reference to the Code is not required to engage the section (see Hallett v. Grey Bruce Health Services, 2009 HRTO 403).

19Although the applicant in this matter did not specifically plead s. 46.1 of the Code in the court proceeding, in my view, the absence of an express pleading of s. 46.1 is not determinative: Beaver, supra at para. 11.

20After considering the parties’ submission and reviewing the Tribunal case law submitted, I find that the Application is barred by s. 34 (11) of the Code. The Application is therefore dismissed.